Previously, I have talked about how the EEOC if it wasn’t the EEOC would have committed legal malpractice in the case we talked about here. From going through my search engine, it doesn’t seem like I have talked about where the legal malpractice risks are with respect to the ADA. In going through my publishing and presenting files, I did find a presentation that I made back in 2012 on the ADA and legal malpractice risks. Our case of the day coming from the Third Circuit, Robinson v. First State Community Action Agency, a published decision from April 1, 2019, is a case where the defense undoubtedly needs to be contacting its legal malpractice insurance carrier. All of this caused me to dig up my 2012 presentation and talk about legal malpractice risks when dealing with the ADA. As usual, the blog entry is divided into categories and they are: elements of a legal malpractice claim; specific ADA legal malpractice risks; case of the day facts; court’s reasoning upholding the jury verdict; and takeaways. As usual, the reader is free to focus on any or all of the categories.


Elements of the Legal Malpractice Claim

  1. The elements of a legal malpractice claim vary depending upon whether litigation or transactional matters are involved. The elements may vary from State to State since legal malpractice is a state matter. Nevertheless, the elements are probably similar no matter where you are. With respect to litigation or a transactional matter, typical elements are: 1) the attorney owes the plaintiff the duty of due care arising from the attorney-client relationship; 2) attorney breached that duty; and 3) as a proximate result, the client suffered an injury. With respect to the injury, the injury is to an intangible property interest caused by the lawyer’s negligent act or omission (actual damages).
  2. With respect to proximate cause in a litigation matter, that breaks down into cause in fact and into legal cause. Cause in fact turns on showing that but for the negligence of the attorney, the client would have prevailed. Legal cause is foreseeability.
  3. With respect to cause in fact in a transactional matter, the question is whether had the undisclosed risk been known, he or she would not have accepted the risk and consented to the recommended course of action.
  4. With respect to damages in a transactional matter, damages are any damages that proximately follow from the client’s acceptance of the advice that fell below the standard of reasonable legal services.

Union Planters Bank, N.A. v. Thompson Coburn LLP, 402 Ill. App. 3d 317, 342 (fifth district 2010).


Specific Legal Malpractice Risks

  1. In Cleveland v. Policy Management Systems Corporation, 526 U.S. 795 (1999), United States Supreme Court said that an SSDI filing may under certain circumstances prevent a person from being able to argue later that the employer did not reasonably accommodate them with respect to the disability because the way the SSDI claim was filed meant that the person with the disability was not qualified to do the job. So, an SSDI lawyer needs to make sure that when filling out the SSDI application that somehow it is made sure that the claim that the person cannot do any job in the economic marketplace is not factoring in reasonable accommodations. Also, the SSDI attorney as a matter of course needs to advise there is a risk that by filing the SSDI claim, a future ADA claim may be put at risk.
  2. Alleging working as the major life activity. In Sutton v. United Airlines, 527 U.S. 471 (1999), the Supreme Court held that to be substantially limited in the major life activity of working, the person must be unable to perform a broad class of jobs. While the ADA amendments did overrule Sutton with respect to mandating mitigating measures be factored into whether a person has a disability, the working as a major life activity part of Sutton is untouched. It is next to impossible for a plaintiff to prevail whenever working as the major life activity is alleged. Further, since the amendments to the ADA broadened the reach of who may have a disability, using working as the major life activity is virtually always unnecessary.
  3. 100% return to work or insisting on full duty. In this blog entry, we discussed how 100% return to work policies are dead under the ADA. I have taken that position since the first edition of my book came out in 2000, but as we have seen in our blog, cases now support that position. If your company’s lawyers are signing off on full duty irrespective of reasonable accommodations or are signing off on 100% return to work policies, they have a problem.
  4. If you are licensing counsel and you have a client that is the subject of licensure proceedings because they are either being regarded as having a disability or they have a record of a disability and you don’t know the ADA, the chances are high that your client will be subject to a variety of adverse actions that may not be consistent with the ADA. You don’t want to let that happen. In my opinion, definitely a malpractice risk if it does happen.
  5. Regarded as. Before the amendment to the ADA, it wasn’t clear whether a plaintiff could argue that they needed reasonable accommodation in a regarded as case. The amendments to the ADA explicitly say that a person who is regarded as having a disability is not entitled to reasonable accommodations. If someone doesn’t realize how the law has changed here, a whole heap of trouble can ensue as we find out in the next sections of this blog.


Case of the Day: Robinson v. First State Community Action Agency


Robinson was told by her manager that her work performance was so poor that she either didn’t know what she was doing or she had a disability where she was dyslexic. The plaintiff taking her words seriously decided to undergo testing for dyslexia. The plaintiff sent her manager an evaluation that concluded that she had symptoms consistent with dyslexia and requested certain accommodation from the manager of human resources. The plaintiff was told that any diagnosis she received would not prevent her from performing her work in a satisfactory manner and she was advised to focus on improving her performance. Weeks later she was fired.

During litigation, plaintiff acknowledged that she could not prove she was dyslexic. She proceeded on the theory that she was perceived or regarded as dyslexic by her employer, and therefore, she was entitled to reasonable accommodation the same way someone who was dyslexic would’ve been. Both parties proceeded under this regarded as case theory through litigation, trial, and post trial briefing. Only on appeal, did the defense seek to overturn the jury’s verdict that the regarded as jury instruction was erroneous and therefore, the jury’s verdict could not stand.


Court’s Reasoning Upholding the Jury Verdict

  1. The amendments to the ADA, per 42 U.S.C. §12201(h), make it clear that a person who is regarded as having a disability but who failed to demonstrate that he or she is actually a person with the disability is not entitled to a reasonable accommodation. We actually discussed the case the Third Circuit relied upon for this proposition here.
  2. The defense never addressed the effect of the 2008 amendments until its briefing on appeal.
  3. At no time did the defense object to plaintiff’s regarded as theory despite numerous opportunities to do so.
  4. The defense waived its regarded as argument in several different ways: 1) the defense was routinely confronted with plaintiff’s erroneous regarded as case theory and never objected; 2) the defense never corrected plaintiff’s error of law when plaintiff raised them in the summary judgment proceedings. Instead, the defense responded that plaintiff did not have a substantially limiting impairment; 3) the defense filed no objections to the Magistrate’s report and recommendation when the magistrate held that there was a question of material fact regarding whether the defense considered the plaintiff disabled. Further, the defendants failed to argue that a plaintiff could no longer proceed under the regarded as a disability theory for reasonable accommodation claims in light of the amendments to the ADA; 4) the viability of the regarded as case theory of the plaintiff’s was squarely before the defense again at trial. At trial, the defense voiced support for plaintiff’s proposed jury instruction even though it was informed by the plaintiff that the plaintiff was not arguing that the plaintiff actually had a disability; 5) the defendant specifically agreed that the reasonable accommodation language should be included in the jury instruction anyway; 6) at the charge conference, defense counsel voiced support for the plaintiff’s jury instruction; 7) once the jury verdict came in against the defense, the defense moved for a new trial but did not raise the error in the regarded as case theory at post trial briefing nor did it move for judgment as a matter of law on those grounds.
  5. An alleged error is waived when the defense fails to raise the objection at trial and fails to include it in post trial briefing.
  6. When a party jointly recommends a jury instruction, it cannot later complain about that very instruction. In this case, the defense did not merely failed to object to an instructional error at a charging conference, it also played along with a flawed theory of liability throughout the litigation and ultimately endorsed the specific instruction embodying that theory.
  7. The defense was initially made aware in mid-2016 of the erroneous case theory and did nothing. It also did nothing again at the beginning of trial. Finally, it invited the trial court to use a case no longer accurate that came down prior to the amendments act.
  8. While it is true that the model jury instructions are erroneous, judges and parties are not free to incorporate incorrect legal principles simply because an error exist in a model jury instruction. After all, model instructions are designed to help litigants in trial courts and not to replace their shared obligation to get the law correct when drafting proposed jury instructions. Accordingly, erroneous model jury instructions are no defense.
  9. Verdict of $22,501 affirmed.



  1. I look for a legal malpractice claim to follow here. The damages awarded to the plaintiff was $22,501. Since the plaintiff prevailed, the defense is on the hook for attorney fees. Also, the defense probably spent $100,000-$300,000 defending the claim through trial. It will be interesting to see how the attorney fees award goes since the plaintiff had no business winning their case under the theory they proceeded under. Nevertheless, the plaintiff did take it to trial and prevailed.
  2. The amendments to the ADA made it crystal clear that a person who is regarded as having a disability is not entitled to reasonable accommodations. Accordingly, but for the negligence, the defense would have won. Accordingly, the legal malpractice cause in fact standard for litigation is met here.
  3. Don’t assume model jury instructions are accurate. They do not substitute for knowing the law in the area.
  4. Lawyers owe a duty of competence to their clients. That means if they don’t know the area as well as they need to, get someone involved as early as possible who does. Having been in this business, ADA compliance, since 1990, I have found that lawyers generally don’t do this. Perhaps, that is a reflection of the competitive pressures of law as well as lawyers thinking that all they have to do is look up statutes, regulations, and read case law. This behavior of lawyers doesn’t make a lot of sense. After all, I wouldn’t ask an eye surgeon to operate on a hernia.

This just in. Law 360 is reporting today, May 1, 2019, that the Third Circuit has denied a petition for rehearing in this case.